Enter your email to subscribe:

The question of whether there can be a judicial taking under the Fifth Amendment's takings clause was not definitely decided by the Court in its opinion today in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection.

The underlying controversy concerns the littoral interests of waterfront property owners; it can seem more a property law issue than a constitutional law issue as the oral argument illustrated. Writing for the Court, Justice Scalia ultimately concluded that the Florida Supreme Court did not violate the takings clause, but first discussed water rights under Florida law and common law. However, when Scalia opined that the takings clause "applies as fully to the taking of a landowner’s riparian rights as it does to the taking of an estate in land," (plurality, opinion at 11), he was not speaking for the majority, but only a plurality of four justices (Roberts, Alito, Thomas, and himself). Likewise, it is only in the plurality portions of the opinion where there is an acceptance of a judicial taking: "It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat." (plurality, opinion at 12).

Concurring in a separate opinion, Kennedy and Sotomayor noted "certain difficulties that should be considered before accepting the theory that a judicial decision that eliminates an “established property right,” constitutes a violation of the Takings Clause." One of their "difficulties" is an originalist one:

Indeed, it is unclear whether the Takings Clause was understood, as a historical matter, to apply to judicial decisions. The Framers most likely viewed this Clause as applying only to physical appropriation pursuant to the power of eminent domain. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1028, n. 15 (1992). And it appears these physical appropriations were traditionally made by legislatures. See 3 J. Story, Commentaries on the Constitution of the United States §1784, p. 661 (1833).Courts, on the other hand, lacked the power of eminent domain. See 1 W. Blackstone, Commentaries 135 (W. Lewis ed. 1897). The Court’s Takings Clause jurisprudence has expanded beyond the Framers’ understanding,as it now applies to certain regulations that are not physical appropriations. See Lucas, supra, at 1014 (citing Mahon, 260 U. S. 393). But the Court should consider with care the decision to extend the Takings Clause in a manner that might be inconsistent with historical practice.

(Kennedy Opinion at 7).

In a different separate concurring opinion, Breyer joined by Ginsburg contended that a judicial takings doctrine would open the floodgates and allow federal judges to decide matters of complex state property law. Essentially, Breyer and Ginsburg argued for judicial restraint.

Stevens took no part in the decision, presumably because he owns beachfront property in Florida.